“NO” on the Employment Non-Discrimination Act (ENDA)

Next week, the Senate will consider the so-called Employment Non-Discrimination Act (ENDA) (S. 815), which would create special privileges based on sexual orientation and gender identity. It would make it illegal for organizations with 15 or more employees to “fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual … because of such individual’s actual or perceived sexual orientation or gender identity.” Employers should respect the intrinsic dignity of all their employees, but ENDA is bad public policy.

The legislation would severely undermine civil liberties, increase government interference in the labor market, and trample on religious liberty. It is flawed public policy based in part on the tenuously defined term “gender identity,” which is commonly understood to be subjective, self-disclosed, and self-defined. The Heritage Foundation’s Ryan Anderson explains the policies in ENDA would be “backed up by coercive enforcement.”

If ENDA were to be enacted, business owners’ civil liberties would be trampled upon; business owners would be restricted from forming associations and contracts according to their own beliefs. Instead, they would be required by law to adopt the government’s values which are based on a vague, subjective definition of “gender identity.”

ENDA would potentially discourage job creation because it would increase government interference in the labor market. Heritage explains “it would impose liability on employers for alleged “discrimination” based on subjective, self-disclosed identities and not on objective employee traits.” “It would not protect equality under the law,” explains Anderson, “but create special privileges that are enforceable against private actors.”

The bill also raises serious religious liberty concerns, as the “protections” included in the bill are vague and inadequately defined. Anderson explains the religious liberty protections in ENDA “build on Title VII’s religious-liberty exemptions, which have been subject to repeated litigation with conflicting rulings by different courts.” The legislation would undermine Americans’ rights to “speak freely of religious or moral convictions about marriage and sexuality.” This concern is already a stark reality in states and localities that have passed sexual-orientation and gender-identity statues.

The alleged purpose of this legislation is to extend equality under the law to more individuals. But “America has no… history of society-wide legal prohibitions on employment based on sexual orientation or gender identity,” which makes this legislation unnecessary. Conversely, it would actually do harm to many Americans’ civil liberties and religious freedom.

Heritage Action opposes ENDA and will include it as a vote on our legislative scorecard.